FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA. Petitioner, 1 st DCA Case No. 1D Emergency Rules No: 58AER17-1

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1 FLORIDA ASSISTED LIVING ASSOCIATION, INC., a Florida not for profit corporation, FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA RECEIVED, 10/5/2017 9:41 PM, Jon S. Wheeler, First District Court of Appeal v. Petitioner, 1 st DCA Case No. 1D Emergency Rules No: 58AER17-1 FLORIDA DEPARTMENT OF ELDER AFFAIRS, Respondent. / RESPONDENT S RESPONSE TO ORDER TO SHOW CAUSE REGARDING PETITION FOR REVIEW OF EMERGENCY RULE Respondent, Department of Elder Affairs ( Department ), pursuant to Rule 9.100, Florida Rules of Appellate Procedure and this Court s Order to Show Cause entered on September 28, 2017, hereby files this Response, and states: JURISDICTION This case involves a challenge to emergency rule 58AER17-1 adopted by the Department to address threats to public health, safety and welfare that became apparent after Hurricane Irma passed through the state and many lives were lost, in part, as a result of power outages (the Emergency Rule ). The Court has 1

2 jurisdiction to review the Emergency Rule adopted by the Department to determine whether the Department s findings of immediate danger, necessity and the fairness of the proceeding comply with the rule-making requirements of Section (4)(a), Florida Statutes (4)(a) and (9), Fla. Stat.; Hartman- Tyner, Inc. v. Div. of Pari-Mutuel Wagering, Dept. of Bus. and Prof l Reg., 923 So. 2d 559, 562 (Fla. 1st DCA 2006); Florida Democratic Party v. Hood, 884 So. 2d 1148 (Fla. 1st DCA 2004). STANDARD OF REVIEW This Court s review of the challenged Emergency Rule is limited to whether the agency followed the requirements of Section (4)(a), Florida Statutes. See (4)(a), (9), Fla. Stat. This proceeding is not to review the substance or validity of the rule but, instead, is only to address the agency s determinations of immediate danger, necessity and procedural fairness. See Hartman-Tyner, Inc. v. Division of Pari-Mutuel Wagering, 923 So. 2d at 562; Florida Democratic Party v. Hood, 884 So. 2d at In its review, the Court is asked only to answer the question of facial validity of the notice of the rule filed with the Department of State; additional facts are not properly before the Court. See Fla. Health Care Ass n v. Agency for Health Care Admin., 734 So. 2d 1052 (Fla. 1st DCA 1988); Fla. Home Builders Ass n v, Div. of Labor, 355 So. 2d 1245 (Fla. 1st DCA 1978). 2

3 THE EMERGENCY RULE The Department s purposes are set forth in Section , Florida Statutes. Generally, the Department is charged with serving as the primary state agency responsible for administering human services programs for the elderly, for developing policy recommendations for long-term care and for promoting the prevention of neglect, abuse or exploitation of elderly persons. Included within the Department s responsibility is the adoption of regulations to ensure the safety and protection of individuals residing in Assisted Living Facilities ( ALF ). See , Fla. Stat. An ALF is defined as:... any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator. See (5), Fla. Stat. Similar to nursing homes, ALFs provide 24-hour care to residents many of which are elderly. On September 11, 2017, Hurricane Irma made landfall in Florida causing significant infrastructure damage and wide-spread power outages. State and local officials were involved in the comprehensive emergency response efforts to address the significant impacts of the storm. The Department assisted in the response effort. Particularly, the Department was involved in, among other things, 3

4 efforts to ensure the health, safety and welfare of residents in licensed facilities including ALFs. Shortly after the storm passed, on September 18, 2017, pursuant to Section (4)(d), Florida Statutes, the Department filed Emergency Rule 58AER17-1 with the Department of State. 1 Notice of the Emergency Rule was also published in the Florida Administrative Register on September 18, 2017 (the Rule Notice ). See A-1. 2 The effective date of the Emergency Rule is September 16, The Emergency Rule set forth requirements for ensuring emergency power equipment is in place at licensed ALFs. As evidenced by the Rule Notice, the Department concluded that there is a need to ensure emergency power at all licensed facilities in order to protect the health, safety and welfare of Florida s most vulnerable citizens. As noted in the Rule Notice, at least eight (8) nursing home residents died as a result of the failure to have sufficient emergency environmental controls in place during Hurricane Irma. Since the Emergency Rule was published, the death toll of residents from that facility has risen to at least twelve (12). 1 Notification was also given through press release(s) published on September 16, 2017, as well as being posted on the Department s website. See 2 References to the Appendix will be cited as [A- ] followed by the appropriate page number. 4

5 At the time the Emergency Rule was promulgated, there were two other hurricanes, Maria and Jose, in the Atlantic Ocean that potentially posed a threat to the state of Florida. In addition, today, an emergency was declared by Governor Scott in response to Tropical Storm Nate currently in the Gulf of Mexico. Based on what had been learned as a result of Hurricane Irma, the Department determined there was an immediate danger to the health, safety and welfare of Florida s most vulnerable citizens requiring an emergency response to ensure that the state s licensed ALFs had sufficient emergency power equipment in place to ensure continued operation of environmental controls to protect the health safety and welfare of the residents they were obligated to shelter and protect. More specifically, the Department determined that each facility must have the ability to provide environmental control to protect the residents for at least ninety-six (96) hours. The Department has administrative rules in place which require ALFs to maintain emergency management plans. The wide-spread infrastructure disruptions and power outages resulting from Hurricane Irma, however, revealed to state officials life threatening conditions that exposed elderly residents of ALFs to the risk of death, and which needed to be addressed to protect these most vulnerable citizens. The Emergency Rule was promulgated to immediately address problems associated with the loss of power to environmental control equipment, which had 5

6 already resulted in multiple at the Rehabilitation Center at Hollywood Hills. In fulfilling the regulatory duties assigned to it, the Department concluded that there was an urgent need to impose requirements for implementation of emergency power equipment to ensure safe temperatures in ALFs throughout the state. Through its experience with Hurricane Irma, the Department concluded that management plans that simply call for evacuation to another facility in the area or depend on third parties, do not adequately ensure that appropriate emergency environmental controls are in place to protect the health, safety and welfare of the residents of ALFs throughout the state. Impassable roads due to storm damage may render management plans, impossible to implement, especially plans that rely on evacuation or obtaining equipment from third parties. The Department published a Rule Notice for its Emergency Rule which meets the rulemaking requirements of Section (4)(a), Florida Statutes. See A-1. The Rule Notice published by the Department for the Emergency Rule includes the following facts and reasons to support the Department s findings of immediate danger, necessity, and procedural fairness: SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE: The State has experienced extreme shortages of electrical power that have jeopardized, and continue to jeopardize, the health, safety and welfare of residents in Florida s assisted living facilities. According to the United State Census Bureau, Florida has the largest percentage of residents age 65 and older in the nation. According to the Centers for Disease Control and Prevention, people age 65 years or older are more 6

7 See A-6-7. prone to heat-related health problems. An incompetent response by a nursing facility to a loss of air conditioning after Hurricane Irma resulted in the tragic loss of eight senior citizens at Rehabilitation Center Hollywood Hills. Thousands of frail seniors reside in assisted living facilities in Florida. Ensuring assisted living facilities maintain sufficient resources to provide alternative power sources during emergency situations mitigates the concerns related to the health, safety and welfare of residents in those assisted living facilities that experience loss of electrical power. This emergency rule establishes a process by which assisted living facilities shall obtain sufficient equipment and resources to ensure that the ambient temperature of assisted living facilities will be maintained at or below 80 degrees Fahrenheit within the facilities for a minimum of ninety-six (96) hours in the event of the loss of electrical power. Prompt implementation of this rule is necessary to ensure continuity of care and to ensure the health, safety and welfare of residents of Florida s assisted living facilities. REASONS CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: The procedure used to adopt this emergency rule is fair as the State of Florida is under a declaration of emergency due to the massive destruction caused by Hurricane Irma, and it is essential to ensure as soon as possible that temperatures in assisted living facilities are maintained at a level providing for the safety of the residents residing therein; provides at least the procedural protection given by other statutes, the State Constitution, or the United States Constitution; and takes only that action necessary to protect the public interest under the emergency procedure. Thus, the Emergency Rule establishes a requirement that licensed ALFs develop and implement plans to ensure ambient temperatures will be maintained at or below 80 degrees Fahrenheit for a minimum of ninety-six (96) hours in the event of the loss of electrical power. The Emergency Rule also sets forth a process for review of the plans. See A-7. 7

8 On September 27, 2017, Petitioner filed a Petition for Review of Emergency Rule pursuant to Section (4)(a) and (9), 3 Florida Statutes, seeking review by this Court of the Department s findings of immediate danger to the public health, safety and welfare. On September 28, 2017, this Court issued an Order to Show Cause directing Respondent to file a Response by Thursday, October 5, 2017, addressing why the Petition should not be granted. As set forth in more detail below, Respondent timely files this Response in opposition to the Petition for Review and submit the Emergency Rule is in full compliance with the requirements of Section (4)(a), Florida Statutes. STANDING Because of the expedited and limited nature of the review of the instant Emergency Rules pursuant to Sections (4)(a) and (9), Florida Statutes, a challenger must make a colorable claim that it will be affected by the emergency rules at issue to have standing to dispute it. See Florida Home Builders Ass n v. Division of Labor, 355 So. 2d 1245, 1247 (Fla. 1st DCA 1978) (holding the Association did not make a colorable claim of standing to challenge the emergency rule because the association could not show that its members were adversely affected by the rule). 3 Petitioners also cite to Section (1), Florida Statutes. 8

9 Here, the Petitioner claims to be the representative of 533 Florida licensed assisted living facilities ( ALFs ) that would supposedly be adversely affected by the Emergency Rule. The Petitioner represents a small subsection of the regulated public. The extent to which Petitioner s members are already or can easily become in compliance with the Emergency Rules is not in the record. 4 Further, the Uniform Rules of Procedure, authorized pursuant to Section , Florida Statutes, allow any of Petitioner s individual members to seek an emergency waiver or variance from the Emergency Rule, or any rule for that matter, at issue here depending on their unique circumstances. Rule , Florida Administrative Code ( F.A.C. ), provides for procedures to process a requested variance or waiver on an emergency basis as follows: process. (2) In addition to the other requirements of Section (5), F.S., and this chapter, the petition shall specify: (a) The specific facts that make the situation an emergency; and (b) The specific facts to show that the petitioner will suffer an immediate adverse effect unless the variance or waiver is issued more expeditiously than the time frames provided in Section , F.S. Several facilities have already availed themselves of this waiver 4 The Petitioner has filed a Petition for review of the Emergency Rule at DOAH. An evidentiary hearing has already been scheduled in that case for October 12-13, The facts associated with the Petitioner s membership can be developed during that administrative hearing. 9

10 The Petitioner/association lacks standing because whether any individual facility currently meets the requirements of the Emergency Rule, whether any individual facility could meet the requirements of the Emergency Rule, or whether any individual facility could meet the requirements to seek an emergency waiver or variance, is fact specific to that facility. There is no demonstrated commonality between the Petitioner s members. ARGUMENT The Petitioner s Petition for Review of Emergency Rule must be denied. 5 If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger. See Florida Democratic Party v. Hood, 884 So. 2d at In promulgating the Emergency Rule, the Department complied with all requirements of Section (4)(a), Florida Statutes, which provides: 5 In the Petition, the Petitioner relies heavily on case law addressing emergency orders and immediate final orders regarding the revocation or suspension of a license. An agency implements policy through rulemaking. An agency takes enforcement action against an individual licensee through issuance of an order. While the general requirements for what must be included in the emergency rule regarding finds of immediate danger and fairness are similar to that required for emergency orders, the analysis of whether the particular reasons behind the agency action is necessarily different. The analysis used in the licensing cases does not automatically translate to the analysis used in review of the facial validity of an emergency rule. 10

11 (4) Emergency rules.-- (a) If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger. The agency may adopt a rule by any procedure which is fair under the circumstances if: 1. The procedure provides at least the procedural protection given by other statutes, the State Constitution, or the United States Constitution. 2. The agency takes only that action necessary to protect the public interest under the emergency procedure. 3. The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. In any event, notice of emergency rules, other than those of educational units or units of government with jurisdiction in only one or a part of one county, including the full text of the rules, shall be published in the first available issue of the Florida Administrative Register and provided to the committee along with any material incorporated by reference in the rules. The agency's findings of immediate danger, necessity, and procedural fairness shall be judicially reviewable. [Emphasis added.] In this case, the determination of this emergency is based on factually explicit and persuasive reasons, which meet the requirements of Section (4)(a), Florida Statutes. In addition, procedural fairness is provided through the administrative hearing process under Section (5), Florida Statues, which Petitioner has already initiated and for which a hearing is currently scheduled to be held on October 12 and 13,

12 A. The Facts and Reasons in the Rule Notice are Particularized and Persuasive. In order to utilize emergency rule making procedures pursuant to Section (4), Florida Statutes, an agency must publish, in writing, the specific facts and reasons for finding an immediate danger to the public health, safety or welfare. See Hartman-Tyner, Inc. v. Div. of Pari-Mutuel Wagering, 923 So. 2d at 562; (4)(a), Fla. Stat. As noted above, the Court s review is limited to the face of the written statement in the Rules Notice. Here, the Rule Notice contains explicit and persuasive facts sufficient to support the finding of immediate danger and need for the Emergency Rule. With respect to what constitutes explicit and persuasive facts, this Court s decision Florida Health Care Ass n v. Agency for Health Care Administration, supra, is instructive. In Florida Health Care Ass n, at issue was whether the findings of immediate danger in the written statement were valid. Id. at The written statement provided, in pertinent part, that: Pursuant to Section (4)(a), F.S., the Agency for Health Care Administration finds that the current criteria for obtaining a nursing facility superior rating constitutes an immediate danger to current and potential residents of nursing homes. Under the current criteria, a superior rating can be obtained by a nursing facility which was cited for deficient quality of care in the prior calendar year. This has led to a situation where residents of facilities, potential residents of facilities, and their families are in danger of being mislead [sic] as to the history of the facility s quality of care... [Emphasis added.] 12

13 Id. at The Court found this statement insufficient because the agency did not provide any factual basis to support the conclusion that consumers might be misled, nor did the agency establish anyone has actually been misled, or, if so, that this resulted in an actual risk to the health, safety or welfare of the affected individuals. Id. at The written statement in the Rule Notice for the instant Emergency Rule does not suffer from the same infirmity. The Department has concluded that the health, safety and welfare of residents can be directly affected by the loss of environmental controls, as evidenced by residents actually dying at a facility that failed to have emergency power equipment capable of operating independently for a limited time period after a loss of power during Hurricane Irma. A hurricane, however, is not the only event that can cause a wide-spread power outage. In the written statement the Department specifically explains that the State has experienced extreme shortages of electrical power that have jeopardized, and continue to jeopardize, the health, safety and welfare of residents in Florida s assisted living facilities [and nursing homes]. The tragic loss of life of residents at the Rehabilitation Center at Hollywood Hills is but one example 6 Similarly, in Hartman-Tyner, Inc. v. Div. of Pari-Mutuel Wagering, supra, this Court struck down another emergency rule, in part, because the written statement did not show any particular members of the public were actually faced with an immediate danger to their health, safety, or welfare as a result of the no-limit tournaments held at one cardroom contrary to law. Id. at

14 of such vulnerability and the immediate danger the lack of proper emergency equipment poses to the residents in the facilities, especially to the elderly. The emergency sought to be addressed by the Emergency Rule is that ALFs and nursing homes are presently vulnerable to loss of power at any moment. Section (4), Florida Statutes, does not require the Department to include in the written statement justifying the rule every fact relevant to its decision. The statement need only include sufficient explicit and particularized facts to support the findings of immediate danger. The written statements in the Rule Notice set forth the requisite facts and reasons in a particularized and persuasive manner. Petitioner s contention that the written statement contains nothing more than conclusory statements which are not sufficient to support promulgation of an emergency rule is not persuasive. As the Department explains in the Rule Notice, Florida s large percentage of older residents and the thousands of those residents currently residing in assisted living facilities, promulgation of the Emergency Rule is imperative to ensure environmental controls can be maintained for at least 96 hours. The emergency addressed in the Emergency Rule is a matter of life and death, and as unfortunately seen with respect to the residents of the Rehabilitation Center at Hollywood Hills facility which perished, this is a matter of immediate danger to the public health, safety and welfare on a statewide level. While Petitioner cherry picks certain statements from the Rule Notice to argue that the 14

15 facts and reasons are conclusory, when read as a whole, the Department clearly sets forth specific facts and reasons which persuasively evidence immediate danger which must be addressed. An example of a conclusory statement relative to support for an emergency rule is found in Times Publishing Co., v. Florida Department of Corrections, 375 So. 2d 304 (Fla. 1979). In Times Publishing Co., the Department of Corrections enacted an emergency rule regarding cancelling media interviews with death row offenders when a death warrant is issued. Id. at 305. The written statement for that rule provided only that: Immediate promulgation of [a] rule is necessary to maintain security of [the] prison during [the] period of time when execution is imminent. Id. The Court found this conclusory statement to fall short of the emergency rule making requirements of Section (4)(a). Id. at 306. Such is not the case here, as the written statement in the Rule Notice published by the Department contains particularized supportive statements including but not limited to: - The State has experienced extreme shortages of electrical power that have jeopardized, and continue to jeopardize, the health, safety and welfare of residents in Florida s assisted living facilities. - An incompetent response by a nursing facility to a loss of air conditioning after Hurricane Irma resulted in the tragic loss of eight senior citizens at Rehabilitation Center Hollywood Hills. [A-6] AHCA and the Department s written statement in the Rule Notice comply with the requirements in Section (4)(a), Florida Statutes. 15

16 B. Necessity for the Emergency Rule Petitioner asserts that because Florida has experienced hurricanes and windstorms before, and because there are currently rules in place addressing emergency management plans for licensed ALFs, this somehow proves that the need for the instant Emergency Rule was foreseeable and/or that there is no necessity for it. To the contrary, such argument supports a determination that the need for the instant rule was unforeseen and that the rule is necessary. While it is correct that the Department has rules regarding emergency management plans, those rules do not require ALFs to have the type of emergency power equipment and preparedness addressed in the Emergency Rule at issue. As evidenced in the statement in the Rule Notice, the need to require facilities to have emergency power equipment sufficient to operate the facility s environmental controls independently for at least ninety-six (96) hours was not revealed until eight (8) people died due to the loss of power to the air-condition. Hurricane Irma affected almost the entire state, rendering it difficult, if not impossible, for many facilities to comply with their existing emergency management plans. 7 7 Regarding Petitioner s contentions on the parameters of the hurricane season, Florida is still in the midst of its hurricane and tropical storm season, the length of which cannot be defined definitively. The Emergency Rule requires ALFs to comply by November 15, 2017, which would still be well within the projected timeframe of Florida s hurricane season. 16

17 In Florida Democratic Party v. Hood, 884 So. 2d 1148 (Fla. 1st DCA 2004), this Court upheld an emergency rule providing for a uniform rule setting forth standards and procedures for the conduct of elections in the State of Florida. The issue in that case was whether a sudden or unforeseeable event justifying the rule was stated in the state s written reasons for the rule. Id. at In that case, the state s written reasons for the rule included the following statement: As a result of [the ALJ s rule invalidation], no statewide uniform standards for conducting manual recounts of touchscreen voting systems currently exist. The absence of a rule with applicable standards and procedures will have an adverse effect on the conduct of elections in the State of Florida.... Id. The Court, based on its limited nature of review, determined that the order by the Administrative Law Judge was an unforeseen event supporting the emergency need for the rule and upheld the rule. Id. at In so doing, the Court stated that: Id. at It may be, as alluded to in the dissent, that other actions than those undertaken by the Department may have been preferable, such as earlier establishment of procedures for manual recounts of votes, or, indeed, appealing the ALJ s order of invalidation. It is not our review responsibility, however, in deciding the validity of the rule, whether other means may have been more appropriate. We only look to the reasons the Department expressed and, in so doing, we are unable to say that [the state] failed to comply with the directions of section (4). [Emphasis added.] 17

18 Similarly, the instant written statement supporting the Emergency Rule, denotes an unforeseeable event leading the emergency need for the Emergency Rules including, that: - The State has experienced extreme shortages of electrical power that have jeopardized, and continue to jeopardize, the health, safety and welfare of residents in Florida s assisted living facilities. - An incompetent response by a nursing facility to a loss of air conditioning after Hurricane Irma resulted in the tragic loss of eight senior citizens at Rehabilitation Center Hollywood Hills. - The procedure used to adopt this emergency rule is fair as the State of Florida is under a declaration of emergency due to the massive destruction caused by Hurricane Irma, and it is essential to ensure as soon as possible that temperatures in assisted living facilities are maintained at a level providing for the safety of the residents residing therein... See A-6-7. The Department clearly established that the need for such emergency power equipment to ensure a facility could self-sustain its environmental controls for a number of hours after the loss of power. The need for such equipment was not revealed until the state was faced with the wide-spread destruction and power losses caused by Hurricane Irma including the deaths of at least a dozen residents at the Rehabilitation Center at Hollywood Hills. Contrary to the Petitioner s argument, it is irrelevant whether the Department should have or could have promulgated rules to this effect in the past. The only issue is whether the written statement complied with Section (4)(a), Florida Statutes, evidencing the 18

19 necessity for the Emergency Rules. See Florida Democratic Party v. Hood, 884 So. 2d at C. Written Statement Supporting the Procedural Fairness of the Emergency Rule is Sufficient. In addition to publishing, in writing, the specific facts and reasons for finding an immediate danger to the public health, safety or welfare, in order to utilize emergency rule-making procedures pursuant to Section (4), Florida Statutes, an agency must also set forth its reasons for concluding that the procedure used is fair under the circumstances. See Hartman-Tyner, Inc. v. Div. of Pari- Mutuel Wagering, 923 So. 2d at 562. The rule must be narrowly tailored to protect the public interest under the emergency procedure. Id.; (4)(a)3., Fla. Stat. In its written statement, AHCA and the Department state in support of the finding for procedural fairness that: REASONS CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: The procedure used to adopt this emergency rule is fair as the State of Florida is under a declaration of emergency due to the massive destruction caused by Hurricane Irma, and it is essential to ensure as soon as possible that temperatures in assisted living facilities are maintained at a level providing for the safety of the residents residing therein; provides at least the procedural protection given by other statutes, the State Constitution, or the United States Constitution; and takes only that action necessary to protect the public interest under the emergency procedure. The Emergency Rule at issue here requires that within forty-five (45) days of the effective date of the Emergency Rule, ALFs must provide a detailed written 19

20 plan to the respective agency and the local emergency management agency for review ( Emergency Power Plan ). As set forth in Emergency Rule 58AER17-1, the Emergency Power Plan is to address: (a) The acquisition of a sufficient generator or sufficient generators to ensure that current licensees of assisted living facilities will be equipped to ensure ambient temperatures will be maintained at or below 80 degrees Fahrenheit for a minimum of ninety-six (96) hours in the event of the loss of electrical power. (b) The acquisition and safe maintenance of sufficient fuel to ensure that in the event of the loss of electrical power the generators will maintain ambient temperatures at or below 80 degrees Fahrenheit for a minimum of ninety-six (96) hours after the loss of electrical power. (c) The acquisition of services necessary to install, maintain, and test the equipment and its functions to ensure the safe and sufficient operation of the generator system installed in the assisted living facility. [A-7] Each facility has sixty (60) days from the effective date of the Emergency Rule [September 16, 2017], to implement the plan required under the rule. The Emergency Rule includes provisions to address the process for those Emergency Power Plans that were timely submitted but rejected. The Emergency Rule provides that the Department may revoke the facility s license for non-compliance with the rule and authorizes other fines and sanctions for any violation of the Emergency Rule. [A-7] As noted in the Rule Notice, when faced with the prospect of ALFs throughout the state finding themselves incapable of ensuring safe conditions to 20

21 residents in the face of a loss of power, as was the case at the Rehabilitation Center at Hollywood Hills where at least eight (8) people have died as a result, 8 the Department undertook to craft a response tailored to answer the need for emergency power equipment in sufficient time to ensure all residents of ALFs are properly protected. The Petitioner does not state that ultimate compliance with the requirements of the Emergency Rule is not feasible or possible, just that the compliance with the time frames in the Emergency Rules is not feasible or possible. See Petition, p. 19. Section (4) requires the procedure to be fair under the circumstances. Here, the circumstances presented in the written statement evidence that without the emergency power equipment, residents of ALFs are in immediate danger if the facility loses power to its environmental control equipment. When the Emergency Rule was entered, eight (8) residents of a nursing home had died after loss of power to the facility s air condition unit; the state was under, and is still under a declaration of emergency due to Hurricane Irma. Hurricane season is still ongoing as evidenced by the two hurricanes, Maria and Jose, in the Atlantic Ocean which potentially posed a threat to the state of Florida shortly after Irma passed, as well as the most recent tropical storm currently forming in the Gulf of Mexico. A 8 Since the Emergency Rule was published, the number of residents at Rehabilitation Center at Hollywood Hills that have died has risen to at least twelve (12). 21

22 facility has sixty (60) days to comply with the Emergency Rule which, given the severity of the risk to ALF residents, is not only fair under the circumstances, but clearly necessary. Power outages can occur at any moment even in the absence of a hurricane. The more facilities that acquire the emergency power equipment within the sixty (60) days, the better the protection afforded to the residents of the licensed ALFs statewide. In addition, the Emergency Rule does not usurp other statutes and rules in place under Florida law that can afford relief to any facility that is unable to comply with the Emergency Rule in the specified time frame. Section , Florida Statutes, authorizes agencies to consider providing waivers and variances to administrative rules in limited circumstances. Rule , F.A.C., specifically sets forth an expedited procedure for requesting a waiver or variance on an emergency basis. Whether the requirements of the rule are reasonable, whether it is possible to comply with the time frame in the rule, and whether the sanctions set forth therein are reasonable, are all issues to be determined before an administrative law judge at the Division of Administrative Hearings on the merits of the rule. Petitioner has already availed itself to the expedited review process set forth in Section (5), Florida Statutes, to challenge the validity of the Emergency Rules. During that proceeding, the parties will conduct a full evidentiary hearing during which it will be established that during Hurricane Irma s pass across the length and 22

23 width of the state, numerous ALFs throughout the state were without power and without generators. Under the circumstances explained in the Rule Notice and considering the vulnerable state of the residents in these facilities, the statement of procedural fairness in the Rule Notice is sufficient to comply with Section (4), Florida Statutes. Further, Petitioner asserts that the Emergency Rule is not narrowly tailored. This argument rests on the assertion that only one nursing home lacked sufficient emergency power equipment to effectively deal with the emergency brought by Hurricane Irma in only one area of the state. To the contrary, the Emergency Rule is crafted to require all licensed ALFs in the state to comply with the narrow requirement for implementing an Emergency Power Plan. By definition, a rule has general applicability. See , Fla. Stat. What must be narrowly tailored is the means set forth in the rule to address the identified emergency, which here, is the need to ensure emergency power equipment is installed at all licensed ALFs in Florida. See A-6. The Emergency Rule seeks to save lives by identifying the emergency measures that must be taken now to protect Florida s citizens. Without proper emergency environmental controls, every ALF is at risk for not being prepared to properly care for its residents no matter in what part of the state the facility is located. 23

24 CONCLUSION For all of the forgoing reasons, this Court should deny Petitioner s Petition for Review and find that the Respondent complied with the requirements in Section (4)(a), Florida Statutes, when promulgating the Emergency Rule. Respectfully submitted this 5 th day of October, /s/ Stephen A. Ecenia Stephen A. Ecenia Florida Bar No J. Stephen Menton Florida Bar No Tana D. Storey Florida Bar No Craig D. Miller Florida Bar No Rutledge Ecenia, P.A. 119 South Monroe Street, Suite 202 Tallahassee, FL (850) / (850) Fax steve@rutledge-ecenia.com smenton@rutledge-ecenia.com tana@rutledge-ecenia.com cmiller@rutledge-ecenia.com Co-Counsel for Respondent and Stefan R. Grow, General Counsel Fla. Bar No.: Jeanne Curtin, Senior Attorney Fla. Bar No.: Florida Department of Elder Affairs 4040 Esplanade Way Tallahassee, FL grows@elderaffairs.org curtinj@elderaffairs.org Co-Counsel for Respondent 24

25 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Response was served via on the following parties this 5th day of October, 2017: M. Stephen Turner, P.A. David K. Miller, P.A. Broad and Cassel LLP 215 S. Monroe Street, Suite 400 Tallahassee, FL sturner@broadandcassel.com dmiller@broadandcassel.com mubieta@broadandcassel.com /s/ Stephen A. Ecenia Stephen A. Ecenia CERTIFICATION OF FONT SIZE AND STYLE I HEREBY CERTIFY that this Response has been typed using the 14 point Times New Roman font as required by Rule 9.100(l), Florida Rules of Appellate Procedure. /s/ Stephen A. Ecenia Stephen A. Ecenia 25

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